Appeals Court To Determine If Wizard Of Oz Images Can Be Retroactively Plucked Out Of The Public Domain

from the that's-not-good dept

Patently-O has an interesting discussion about an appeal being heard in the 8th Circuit, involving a question of the boundaries of copyright and the public domain in some images from public domain movie posters for The Wizard of Oz, Gone With The Wind and various Tom and Jerry cartoon films. Of course, back when these came out, in and around 1939, you had to specifically register works to have them covered by copyright. Not surprisingly, the works themselves were registered. However, some of the publicity posters that were used to promote them were released prior to the films being copyrighted (and were not copyrighted themselves) and, thus, are considered public domain.

An operation called AVELA used those public domain posters to make some t-shirts that included characters from these films (or rather, it appears to have licensed the images to others to make shirts). It notes that, as a company that specializes in creating works from the public domain, it was careful to only use images from public domain works. It did not use any images at all from the films themselves.

The district court's ruling in the case was odd, to say the least. It accepted the fact that AVELA only used public domain works... but then seemed to argue they were covered by copyright anyway. Basically, the court argues that the characters in these films have enough characteristics that qualify for copyright protection, that the very characters themselves get protection from the copyright in the movie, even if the images in the posters are public domain. Of course, this is complicated by the fact that, with The Wizard of Oz, many of those characteristics come from the original books... which are now in the public domain. The court simply ignores this point.

In effect, the court seems to be arguing that public domain works that later are included within a copyrighted work can effectively be covered by copyright. That seems immensely problematic for those who believe in the public domain. Hopefully the appeals court recognizes this as an error on the part of the district court.

Re: Re: Re: Copyright since the dawn of time?

Re: Re: Re: Copyright since the dawn of time?

You do realize that Time is a trademarked term, the concept of TIME has been copyrighted, and the mechanics of TIME have been patented, don't you? Your casual use may result in a DMCA take down notice against your existence by the deity of your choice.

Re: Re: Re: Copyright since the dawn of time?

You do realize that Time is a trademarked term, the concept of TIME has been copyrighted, and the mechanics of TIME have been patented, don't you? Your casual use may result in a DMCA take down notice against your existence by the deity of your choice.

Re: Re: Re: Re: Copyright since the dawn of time?

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"Copyright is implied from point of creation. Always has been. You need permission to reproduce."

Wow, I REALLY hope you are being sarcastic with such an obviously false, idiotic statement like that. Not only is it not anywhere remotely true (as copyright is a GRANTED right from the govt/constitution, not an inherent right) but the "point of creation" aspect of it has only been the case since 1976 with the revision of copyright law that did away with the need to specifically register each work. To state it "always has been" is completely disingenuous.

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Even since 1976 it has not been at the point of creation has it? It is at the point of being fixed/finalized? (Important to those who have 'ideas that are stolen' without actually putting pen to paper.)

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Copyright is implied from point of creation. Always has been. You need permission to reproduce.

I was under the impression that the Statute of Anne in 1709 was fairly well recognised as the first instance of copright. It appears you are using some strange definition of the word "always" that I was not previously aware of. Could you point me at your dictionary?

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It's not about what the law says or said, it's about what's convenient to IP maximists. Remember, IP maximists don't care about the law or the importance of following the law and they only argue that point when it's to their convenience.

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Well, everyone knows that the Wicked Witch of the West died when Dorthy got her wet. So with copyright being life + 70 years after death, the Witch is definitely in the Public Domain. Not even her children (Flying Blue Monkeys?) can lay claim to her publicity rights anymore. /sarc

After a ruling like this one, if no t-shirt showing the melting Witch with "The eejit" comment of "Oh god, the stupid BURNS." is available, it should be.

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That is the easiest way, but every time you wore it outside you would need to be scanning the skies, to make certain the flying blue monkeys weren't swooping down from the clouds to take you away. That, or Warner Bros. wasn't suing your butt in court over public domain images (from the non-copyrighted MGM publicity posters) or public domain phrases (which MGM took "word-for-word" from the original Frank L. Baum "Wonderful Wizard of Oz" book that is also long out of copyright and in the public domain).

Sad to say, but it seems that as far as copyright laws are concerned, retroactive rulings from the bench and applying new meanings to laws long after they were written and enacted (rather than trying to get Congress to fix them with an updated version) is "the IN thing" these days. The only real "fixing" is being done by the lobbyists, and we can all read what their "fixing" has done to copyright laws so far.

P.S. All I can think of when I read the words "fixing" and "lobbyists", is sending former "The Price Is Right" gameshow host Bob Barker to Washington D.C., to perform some neutering. Is that wrong?

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Not true at all. Until at least the late 1970s you had to register each and everything you wanted protected. And then you had to renew their registrations if they came up again.

Anything done in the United States before December 31, 1922 is in the public domain. And there are a lot of things created since then that were not renewed, such as most old time radio, tv commercials, some tv shows, and even some films. There are even episodes of series such as The Lucy Show, Andy Griffith, and Dick Van Dyke that are in the public domain.

So no, copyright has not always been implied from the beginning of creation.

Re: Arrgh: Was: Copyright since the dawn of time?

"The Worshipful Company of Stationers and Newspaper Makers (better known as the Stationers' Company) is one of the Livery Companies of the City of London. The Stationers' Company was founded in 1403; it received a Royal Charter in 1557. It held a monopoly over the publishing industry and was officially responsible for setting and enforcing copyright regulations until the passage of the Statute of Anne in 1709."

Re: Re: Arrgh: Was: Copyright since the dawn of time?

It held a monopoly over the publishing industry and was officially responsible for setting and enforcing copyright regulations until the passage of the Statute of Anne in 1709."
Not strictly true - there was a gap. Wikipedia is quite good on this topic but if you want the real story this site is where you should go.

The stationers' company held a legal monopoly on all printing (books copied by hand were not included). The system of copyright was originally an internal regulation of the stationers' company. It was effectively an internal non-compete agreement. Only a member of the company could hold a copyright and no copyright existed until a member of the company registered the work. It was illegal to print an unregistered work at all. In fact it would have been illegal for an author to have his own work printed but perfectly legal for a stationer to print a book without the permission of the author.
The company was never instructed by any higher authority to set or enforce copyright regulations - it did so of its own accord and those regulations only held because no-one else was allowed to print anything at all.

Some people believe that the motivation for allowing the stationers' monopoly was censorship but the historical evidence is unclear on this point. In many ways it simply fitted in with the feudal way of doing things where monopolies on all kinds of activities were handed out by the King just like land and titles, as a way of securing allegiance.

Whatever the reason the stationers' monopoly was always for a limited term and was not renewed after the glorious revolution of 1688. Thus there was a short period in the UK where officially there was no copyright. The stationers lobbied furiously and in the end obtained the statute of Anne. They played a neat trick in suggesting that initial copyright should be assigned to the author. It made them look unselfish - but of course they knew that the author couldn't make use of it - and so would be forced to sell it to a printer. So copyright as we have it was originally a watering down of the stationers desire for an absolute printing monopoly into something that could be "sold" to parliament.

And next.....

MPAA appointed (government funded) neurosurgeons will be calling at your house shortly to remove unauthorised memories of film images from your brain. Just sit still friend citizen, this won't hurt...... much.

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I just don't understand how any of this is constitutional. With infinite copy'right' extensions and this, nothing will ever make it to the public domain. Copy'right' is supposed to last a limited time, isn't it?

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"""With infinite copy'right' extensions and this, nothing will ever make it to the public domain."""

You must be new here. Welcome to TechDirt! And yes, you are correct, nothing will ever make it to the public domain.

"""Copy'right' is supposed to last a limited time, isn't it?"""

It's all about defining terms. Yes, the original agreement was truly limited. But now, the word 'limited' means 'unlimited'. To paraphrase the Caterpillar, words mean whatever the person using them wants them to mean.

If you combine all those together, you have the makings of a perpetual copyright. Where if you keep using the character you get a new copyright on the new episode, there by keeping the old ones under a psudocopyright as long as new material is being published, and even if you let some newer material lapse, who cares?

Of course, this leaves the poor musicians to starve, but hey! At least we ignore the laws, congress, and give the middle finger to those who want things for free and kill the public domain for books and movies! ... I hope this is stopped before it is too late.

Re: Re: Perpetual Copyright WITHOUT the Law

Eep, I got that mixed up. (Even though my statement is not the part of confusion.)

If I understand the situation in that correctly, it was because the later seasons were not registered/re-registered correctly, back when there was a process to have/keep a copyright. Under the modern system, it would not happen, what with the automatic granting the full length copyright without even asking. But, it is something to keep in mind if we ever go back to a registration system. I could be wrong, however.

Actually, it is pretty simple, once you take away all of the FUD Mike is trying to put up.

The movie posters themselves are in the public domain. In theory, you could reproduce the posters as a whole and not have issues (but I am not a lawyer).

However, the movie itself is still copyright. The characters and such that are part of that movie are part of that copyright, as are the actual images of those characters, as used in the movie (because they are part of the movie).

Extracting images from the poster and saying "they are from the poster" doesn't negate the fact that the characters and their images are covered as part of the movie.

If the t-shirts had a reproduction of the entire movie poster, it isn't clear there would be a lawsuit (but there might be still). However, extracting the exact likeness of the characters and using them outside of the context of the poster is pretty much begging for problems. Even an artistic moron in a hurry would know that the movie is copyright.

Mike, you really must learn to write with less FUD. Reading the comments here it is easy to see that you are confusing your children.

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Thatís an interesting argument. However, youíre still arguing that you can take something that exists in the public domain, and copyright it. I donít see how that does anything but open the public domain up to poachers. One minute, all that exists are the public domain images in the poster. The next minute, a copyrighted movie is released. Now the public domain images canít be used to derive new works?
Incidentally, youíve got the whole derivative thing backwards. Creating a derivative work doesnít make it less OK to copy public domain works.

Mike, you really must learn to write with less FUD. Reading the comments here it is easy to see that you are confusing your children.

Re: Re:

"Thatís an interesting argument. However, youíre still arguing that you can take something that exists in the public domain, and copyright it."

To be fair, that isn't what's being said. Recall the idea/expression dichotomy Marcus just brought up. For the most part, characters are considered idea (although if written down in significantly unique detail, they can attain their own copyright). From what I understand, the problem with this situation is that, while the posters themselves may be PD, the specific expression of the characters they're depicting (how a movie portrays a character from a book certainly is "expression") is covered by copyright.

The law requires for characters to attain copyright that they be both unique and have attained what's referred to as "secondary meaning", in that they identify the characters with something other than just the original story. I'm not sure if Dorothy and the Tin Man meet that mark or not, but there really isn't an idea/expression issue here, because the expression of the characters as they're portrayed in the movie IS indeed expression....

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I could see what you're saying with the Tin Man, but... Dorothy? A drawing of a woman's face? I think idea/expression dichotomy still applies a lot there... there is no way that "curious young woman who goes on an adventure to a strange land" is a copyrightable character.

Re: Re: Re: Re:

"I think idea/expression dichotomy still applies a lot there... there is no way that "curious young woman who goes on an adventure to a strange land" is a copyrightable character."

That's where this gets funky. The character itself might not be copyrightable (as in the book version) if it's not unique enough, but it's overwhelmingly likely that a fleshed out expression of said character, such as that which appeared in the film, WOULD qualify for protection. If they had created an original drawing of Dorothy for their Tshirts, they'd probably have a better case. Using an image from the movie makes things more problematic....

Re: Re: Re: Re: Re:

hmm... but in the case of Dorothy, and especially just Dorothy's face minus her outfit, it just becomes 90% an image of Judy Garland's face. I have a really hard time seeing how that would qualify, unless the choice of actress somehow counts as a creative expression.

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Would the t-shirts, with other images, sell as well or be as relevant?

If the answer is no, then you know that the images have secondary meaning. The character plus the phrase is as known as it comes.

The answer to the question often sits in the resulting product. If they would not have made the t-shirts without the images, you know the images have value. It actually proves the case of the copyright holder pretty well.

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I agree with you here. The Tin Man may be able to be protected, but I can't see a farm girl being protected. I also can't see an anthropomorphic lion or scarecrow being copyrighted ether, both are kinda common. The only reason I would think the Tin Man can be is because of his funnel hat. Everything else about him is common placed as well.

Re: Re: Re: Re: Re:

"The Tin Man may be able to be protected, but I can't see a farm girl being protected."

Again, we're not talking about copyrighted CHARACTERS in this case, but specific expressions of those characters. They lifted images from a PD poster which unfortunately included the depiction of the character from the film, which was a unique expression of the idea of that character.

Granted, I still think suing is silly, but it should be qualified that we aren't arguing over whethe the character is copyright or not, only the specific expression the shirts used....

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"I mean, what, is it infringement to make a painting of Robocop?"

A painting? Probably not, though as you you know, IANAL.

But if you lifted Robocop's awesome visage directly from one of their promo posters? Yeah, probably. The tricky part is the whole "secondary meaning" requirement. I was reading about it here (warning: from someone who is a proponent of strict IP protection, so may be biased but has citations):

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I stand corrected.
However, I can't get past the idea that copyright has the power to capture a public domain work for the purposes of derivative works.
Logically, it would be reasonable to consider if the public domain work and the copyrighted work had the same creator. I can also see how the creative entity should not have an unreasonable burden in copyrighting every single instance of the expression. However, it doesnít seem as though that was a factor here.
Under a system in which the creator has the responsibility to register, it seems as though they should not have a claim to works left in the public domain or works derived from them.

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But the Wizard of Oz is in the public domain. It went in last year.

At least in my moon universe it did. Like, y'know, legally it's supposed to. The court judge's argument is that public domain works are copyrighted anyway. Which makes no sense, unless you're a Gatekeeper.

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But that specific depiction was public domain. They didn't register the copyright on the posters, so anything in the poster is public domain.

As a hopefully useful analogy, if I were to take the paintings of the founding fathers and scan them into a computer and use software to make 3d objects out of them and then make a movie out that, I could copyright the movie, but I don't get retroactive copyrights to those paintings, and especially not the images of the founding fathers. "That's because those aren't copyrightable characters" you may say. Fine, I'll do the same thing with Edvard Munch's "The Scream". I don't get to pull that out of the public domain and copyright it because I make a movie with that character.

Remember, the character isn't copyrighted (the book is in the public domain), the image isn't copyrighted (it was on the poster which wasn't copyrighted) so there should be no way to pull that out of the public domain and copyright it.

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"""The movie posters themselves are in the public domain. In theory, you could reproduce the posters as a whole and not have issues (but I am not a lawyer).
However, the movie itself is still copyright. The characters and such that are part of that movie are part of that copyright, as are the actual images of those characters, as used in the movie (because they are part of the movie).
Extracting images from the poster and saying "they are from the poster" doesn't negate the fact that the characters and their images are covered as part of the movie.
If the t-shirts had a reproduction of the entire movie poster, it isn't clear there would be a lawsuit (but there might be still). However, extracting the exact likeness of the characters and using them outside of the context of the poster is pretty much begging for problems."""

Oh the tortured, tortured logic! Pity it, for it bleeds...

"""Actually, it is pretty simple, once you take away all of the FUD Mike is trying to put up."""
"""Mike, you really must learn to write with less FUD."""

I remember a while back you wrote an article about why I hope the RIAA wins. I'm beginning to feel like that about cases like this. I hope the court rules against the t-shirt company. Then I hope the impose further draconian laws until they manage to drag Frankenstein back under copyright. Then I want the estate of Mary Shelly to sue Dean Koontz for infringement (he wrote a trilogy of books - sequels - about Frankenstein and the monster in modern times) and win and Koontz has to shell out a few million dollar (I'm just using Koontz sand Shelly as an example since it is the first one that popped to mind). Maybe then we'll see a serious backlash against these stupid attempts to make stupid laws.

Anonymous Coward, Feb 23rd, 2011 @ 6:57am: ok first thing is that perhaps your parents should have had to ask permission before THEY reproduced...ok now that's out of the way.....

Does this mean if I make a movie I can retroactively nab stuff from the public domain? because I intend to use the primary colors red green and blue so everyone with eyeballs owes me a licence fee....oh and the film is about licence fees, so to get a licence fee, you erm....owe me a licence fee.....

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It's a complicated deal, because it depends on many things. But most important, you cannot ask for license fees on things that are already in the public domain. As I mentioned before, merely reproducing the movie poster (in it's entirety) may not have been a violation. Extracting the characters from it may be because it isn't the public domain work that is being used, but rather specific characters. Put another way, there is no way to know if those images came from a poster or from the movie.

Now, if you make a movie that contains public domain stuff, you can copyright the movie. But you would have a very hard time copyrighting the public domain stuff as it existed before your movie. You would have a very hard time to enforce any copyright over the characters or objects there were in the public domain just like that.

This case is fairly narrow because the characters are the same, same story, same basic work.

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Put another way, there is no way to know if those images came from a poster or from the movie.

If there is no way of telling I would have thought that the reasonable default would be to say that it came from the public domain. The fact that anyone thinks otherwise is troubling - if you consider the implications.

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It's a complicated deal, because it depends on many things. But most important, you cannot ask for license fees on things that are already in the public domain.

Wrong. You can absolutely ask. Doesn't mean anyone will give you, and they might find other sources, but you can ask.

Extracting the characters from it may be because it isn't the public domain work that is being used, but rather specific characters. Put another way, there is no way to know if those images came from a poster or from the movie.

From a legal perspective, you are wrong. Any element of a public domain work is public domain. It does not have to be the whole document.

I'm not sure where you learned copyright law, but you should ask for a refund.

"The defendant apparently obtained a set of publicity posters and other material from the movie that are in the public domain and that were distributed prior to the movie being copyrighted." - so much for the court's statement of "pluck from these pages images of Plaintiffs' copyrighted characters" - If the actual images are pulled from public domain items...

"The public domain materials included images of Judy Garland playing Dorothy Gale, Jack Haley as the Tin Woodsman, etc" Yep, sure seems like the images are public domain items...

No problem with infringement so far,

BUT:

"the defendant also included well known phrases from the movie such as "there's no place like home.""

Question?

Were these specific phrase missing from L. Frank Baum's 1900 Wonderful Wizard of Oz novel that is now out of copyright (and likewise in the public domain)?

I think not:

Like page 45 of the book: "There's no place like home."
Like page 93 of the book: "If I only had a heart..."

The fact that this case has not been tossed is asinine. Any court that cares about preserving the decency and integrity of the court system will throw Warner Bros. Entertainment, et al out on their ear.
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I've personally looked at a scan of the book in Archive.org, and Ping is correct that those phrases are on those pages. Now unless their is some law stating that printing the lines from a book that is in public domain together with images that are in the public domain, or printed "catch phrases" that are spoken in a movie based on and taken directly from a book that is in the public domain, is now somehow copyright infringement, I can't see how the case got to the point it did. The only exception I can see here is another screwed up ruling that should and hopefully will be overturned.

Now if the t-shirt maker had included a tiny sound chip attached to the shirt, playing the spoken words from the actors in the movie, then a portion of this ruling might have a leg to stand on, as the audio would be part of the movie and still under copyright protection.

Maybe Warner Bros. might have a better chance if they sue based on illegal use of the publicity rights of the "catch phrases", as it's always a good idea to throw as much as possible into a lawsuit to find out what the judge will let stick to the wall. You'll never know what they might allow, so shovel in as much as you can before it starts, as it's always too late to sue and have a chance of winning once the copyright expires... or is it??? Apparently not, in this case.

However

I think copyright is going to go one of two ways fairly shortly:

1. Copyright pretty much stays where it is (RIAA etc deliberately tread water, so copyright law never gets harsher but also never gets 'softer'...which might be the purpose to the stupid lawsuits all along to keep pushing against the tide)

2. Copyright law (and by extension control of citizens lives) suddenly takes a massively draconian leap forward....indescribably immense backlash takes place, RIAA gets basically stomped on with the steel-capped boots of poetic justice......Hello there Tunisia and Egypt, didn't see you standing in the corner waving....how's tricks?

Re: However

I doubt you will see #2, as there is rarely a giant leap forward in these sorts of things, just progress.

What you are more likely to see is changes to the laws that will make section 230 protections more strict, will spell out more clearly service providers responsibilities, and so on. I think you will also see a streamlining of the DMCA process, and a more clear defining of the redflag concept. Don't be shocked if there is a "Do Not Use" list created similar to the "Do Not Call" list, that will allow content producers to explicitly forbid their works from any site that they don't grant written permission to, essentially blocking the current DMCA shuffle that is going on.

It won't be a huge jump, it will be a tightening. The current situation is intolerable for the government.